Information Note on the Court’s case-law 73

March 2005

WoÅ› v. Poland (dec.) - 22860/02

Decision 1.3.2005 [Section IV]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Request for compensation for forced labour during the Second World War: Article 6 applicable

Article 35

Article 35-3-a

Ratione personae

Actions of a private-law foundation capable of engaging State responsibility when the State has delegated to it obligations arising out of an international agreement between States

In 1993 the applicant applied to the Polish‑German Reconciliation Foundation (“the Foundation”), for compensation on account of his forced labour during the Second World War on the territory of Poland. The Foundation had been established by the Government of Poland in order to distribute funds contributed by the Government of the Federal Republic of Germany under a 1991 agreement between the two States (“the first compensation scheme”). The funds were to be used for providing financial assistance to victims of Nazi persecution who had been particularly wronged. The Foundation was to determine the necessary criteria for the granting of compensation payments, having regard to serious damage to the victims’ health and to their current difficult financial situat ion. A Polish Minister (Head of the Cabinet Office) had established the Foundation by making a declaration before the State notary. The Foundation was operating under the supervision of the Minister of the State Treasury.

In 1994 the Foundation’s Verificat ion Commission established that the applicant had performed forced labour until January 1945 and awarded him a certain amount in compensation. His appeal was dismissed by the Appeal Verification Commission. In 1999 the Foundation’s Management Board adopted a Resolution introducing a deportation requirement for claimants who had been forced labourers, unless they had been under 16 years of age at the time of being forced to work. The Foundation’s Verification Commission granted the applicant further compensa tion based on forced labour performed prior to turning 16 in February 1944. His appeal to the Appeal Verification Commission, challenging the amount granted, was refused on the basis that under the 1999 Resolution only forced labourers deported to the Thir d Reich or to an area occupied by the German Reich (with the exception of the territory of occupied Poland) were eligible for compensation. The Supreme Administrative Court declined to examine the merits of the applicant’s further complaint, considering th at the source of an entitlement to an award from the Foundation did not stem from an act of public administration.

From 1998 to 2000 another set of international negotiations took place on the issue of compensation in respect of slave and forced labourers for Nazi Germany. These negotiations concluded in 2000 with the adoption of a Joint Statement which was signed by all parties, including the Government of Poland. The Government of Germany and German companies undertook to contribute a further DEM 5 billio n. The Statute of the Foundation was then amended on the initiative of the Minister of the State Treasury in order to arrange for the disbursal of these funds (“the second compensation scheme”).

The applicant’s request for compensation under the second sch eme was refused by the Foundation’s Verification Commission on the ground that he did not satisfy the deportation requirement. He did not appeal. In 2001 the Management Board of the Foundation adopted a Resolution with a view to providing compensation to c ertain categories of claimants not otherwise eligible. In application of this Resolution the Foundation granted the applicant compensation of PLN 1,000 due to the fact that he had performed forced labour as a child under 16 years of age.

Before the Court t he applicant complained about the Foundation’s decisions partly refusing to grant him compensation. He further alleged, in substance, that he did not have access to a court in respect of the Foundation’s decisions in his case.

Responsibility of the Polish State : It could not be said that the State exercised a pervasive influence in the daily operations of the Foundation. It did not have direct influence over the decisions taken by the Foundation in respect of individual claimants; however, the State’s role was crucial in establishing the overall framework in which the Foundation operated. The fact that a State chooses a form of delegation in which some of its powers are exercised by another body cannot be decisive for the question of State responsibility rat ione personae . The exercise of State powers which affects Convention rights and freedoms raises an issue of State responsibility regardless of the form in which these powers happen to be exercised, be it for instance by a body whose activities are regulate d by private law. The Polish State’s decision to delegate, to a body operating under private law, its obligations arising out of the international agreements, could not relieve the State of the responsibilities it would have incurred had it chosen to disch arge these obligations itself. In the specific circumstances the actions of the Foundation in respect of both compensation schemes were capable of engaging the responsibility of the State.

Applicability of Article 6 : With regard to the first compensation scheme the dispute over the applicant’s entitlement to compensation, and in particular its scope, was genuine and serious. The Foundation’s regulations defined the conditions and procedures with which a claimant had to comply before compensation could be a warded. Those regulations, regardless of their characterisation under domestic law, could be considered to create a right for a victim of Nazi persecution to claim compensation from the Foundation. Accordingly, if a claimant complied with the eligibility c onditions stipulated in those regulations he or she had a right to be awarded compensation which was not of ex gratia nature. Hence the applicant could claim, at least on arguable grounds, the right to receive compensation from the Foundation in respect of the overall period of his forced labour. This was so especially since he had already received one instalment of such compensation by virtue of the 1994 decision.

There were similarities between the entitlement to welfare allowance (see Salesi v. Italy, ju dgment of 26 February 1993, Series A 257-E, § 19) and the entitlement to receive compensation from the Foundation, regard being had in particular to the eligibility criteria of a claimant’s difficult financial standing and severe damage to his or her healt h as a result of Nazi persecution. The applicant was claiming an individual, economic right flowing from specific rules laid down in the Foundation’s Statute and its by-laws. The right to claim compensation from the Foundation could therefore be considered “civil” for the purposes of Article 6.

With regard to the second compensation scheme the applicant had not demonstrated that he had filed an appeal to the Appeal Verification Commission against the decision of the Foundation’s Verification Commission of 2 001. In those circumstances it was not necessary to examine whether Article 6 § 1 applied to those proceedings: non‑exhaustion of domestic remedies.

Compliance with Article 6 (in respect of the proceedings concerning the first compensation scheme): admissi ble.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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